Public Law
November 2021

Summary

Decision of HHJ Wildblood QC sitting as a Judge of the High Court at a final hearing concerning a young boy (C), not yet a teenager who was in residential care (with DOLS restrictions authorised) due to his extreme behaviour and the parents' inability to cope with it. Final care order made on the basis (as per the amended care plan) that there would be a thorough review as to whether he could return to his mother’s care in 18 months’ time.

Background

As a young child C was admitted to psychiatric hospital in his native country where he was given Risperidone, amongst other drugs, and treated as a child who has ADHD. C recalls being restrained and injected with needles.

After coming to this country in 2017 his behaviour was increasingly dysregulated, dangerous and, at times, violent. In particular during the first lockdown due to the family were in extreme difficulties. The LA assessed C to be beyond parental control in May 2020, the social worker fearing that it was only a matter of time before someone was seriously injured in the home and recommending that C needed to live elsewhere. C was eventually placed into residential care in October 2020 pursuant to s.20 CA 1989. A month later he moved to a different placement and an ICO was made, followed later by order authorising the LA to deprive C of his liberty. That placement was not successful either; staff could not contain C and he moved again.

At the time of the final hearing C had lived in residential accommodation in a registered children's home about 130 miles from where the parents live for 8 months. C’s parents had recently separated. The judge was satisfied that the parents both love C and have a genuine and heartfelt wish to do what is best for him, remarking that they are decent people who have known immense emotional hardship. Both parents wanted C to return to the mother’s care, as did C. The LA sought a final care order with a plan for him to remain in his existing placement. The Guardian supported the LA’s application.

C’s placement involved (i) authorisation that he may be deprived of his liberty, (ii) regular contact with his parents, (iii) intensive education in a special school where he is in a class of four pupils, (iv) therapy, (v) care from the care-workers at the children’s home.

There were two options for C’s future care; returning to live with his mother with such support as might be put in place for him and for her or for C to be subject to a care order and remain subject to the same authorisation that he may be deprived of his liberty. The guardian, social workers and the workers from the children’s home all recommended that C is not returned to the mother and that the only solution to these proceedings that would be compatible with his welfare is a care order coupled with the authorisation that is sought. They gave very firm and strong evidence that C is making progress at RA House and it is essential to his welfare that he should remain there.

Decision

The Learned Judge decided that C should remain in children’s home, making him subject of a care order, finding that if he were to return home, he would likely suffer the same harm as before, and it was highly likely that the same problems would occur. The Learned Judge agreed that the support that could be offered the family if C returned home would would not be sufficient to render C safe at home. If C were to remain in his residential placement however, he would benefit from specialist support and the therapy he receives.

Further, that if C returned home to his mother and the placement broke down, any work undertaken with him would be undone, as he suffered the trauma of removal and placement elsewhere.

It is clear from the judgement that the care plan was ‘much-amended’ during the course of the hearing and by the time the evidence and submissions concluded, the clear stated aim of the plan was for C to be reunited with his family as soon as is compatible with his welfare and that the review of the plan in 18 months must be thorough (emphasis added); "If it isn't the parents would be able to bring the matter back to court on an application to discharge the care order under section 39 of the 1989 Act."

The Learned Judge concluded by noting that, with a weekly cost of £9,500 per week at the children’s home, C’s care between his decision and the planned review in 18 months will cost around £750,000.

Summary

Decision of Mr Justice Poole in respect of the approach to COVID-19 and winter flu vaccinations for looked after children.

Background
C, who was almost 13, was the subject of a care order made in 2015. He wished to be vaccinated with the COVID-19 and winter flu vaccinations. This was supported by the LA and his guardian who agreed it was in his best interests. C’s father supported C’s decision. However, C’s mother was strongly opposed to C being vaccinated on safety grounds. She did not accept that the vaccines would protect children or that the national vaccination programmes were based on sound evidence.

The LA made its application to the High Court for confirmation that it was entitled, pursuant to s.33 CA 1989, to exercise its PR by arranging and consenting to the vaccinations. In the alternative, the LA sought a declaration under the inherent jurisdiction that it was in C's best interest to have the vaccinations.

Notwithstanding the Court of Appeal decision in Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664, that a LA with a care order can arrange and consent to a child in its care being vaccinated where it is satisfied that it is in the best interests of that individual child, notwithstanding the objections of parents, the LA noted that the point has not been tested in relation to the Covid-19 or winter flu vaccines.

Decision
Poole J determined that the principles in Re H applied to the COVID-19 and winter flu vaccination programmes; in the absence of contraindications for a particular child, decisions for a child to undergo standard or routine vaccinations as part of national programmes are not regarded as 'grave' decisions.

Thus a LA with a care order/interim care order can arrange and consent to a child in its care being vaccinated for COVID-19 or the winter flu virus notwithstanding the objections of the child's parents if:

1. the vaccination is part of an ongoing national programme approved by the UK Health Security Agency);
2. the child is either not Gillick competent or is Gillick competent and consents; and
3. the local authority is satisfied that it is necessary to do so in order to safeguard or promote the individual child's welfare.

LAs should note therefore that they are not required to make an application to the court to authorise such a decision; it would be for the objecting parent to make an application to seek to prevent the vaccination. However, Poole J did note that in cases where vaccination would have enduring or profound consequences for the child, that may make the decision to vaccinate 'grave' and thus require the LA to apply to the High Court.

Note
In Re H, the Court of Appeal was concerned with very young children. Poole J notes that if a Gillick competent child refused vaccination, it would raise different questions about whether the LA could override the child's decision and whether the issue should be brought before the court. Poole J did not determine this issue as it was not necessary to do so in this case.

Summary

Decision by MacDonald J on the use of inherent jurisdiction to authorise the deprivation of a child’s liberty in an unregistered placement. The court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the President's Practice Guidance to apply for registration.

Background
In September’s public law update, Jaime Turner summarised MacDonald J’s decision in Tameside MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) following the coming into force on 9 September 2021 of the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021 (prohibiting the placement of looked after children under 16 in unregulated placements). MacDonald J decided that it remains open to the High Court to authorise under its inherent jurisdiction the deprivation of liberty of children under 16 in unregulated placements, subject to the rigorous application of the President's Guidance of November 2019 and the addendum dated December 2020.

In this case, the court was considered with the question of whether it remains open to the court to exercise its inherent jurisdiction in cases where a placement either will not or cannot comply with the President’s Guidance, the LAs arguing that compliance with the Guidance was not a condition precedent to the court’s exercise of the inherent jurisdiction. The Secretary of State for Education and Ofsted, Intervenors at the court’s invitation, argued that it could not.

In the three cases before MacDonald J, each concerned a young person under 16 with a very high level of need, placed in an unregistered placement in circumstances where an application for registration had not yet been made (and was not imminent) or where an application would not be made.

Considerations
The focus of the President's (non-statutory) Guidance is to ensure that in cases where a court authorises placement in an unregistered placement, steps are taken immediately by those operating the unit to apply for registration so the placement will become regulated within the statutory scheme as soon as possible. Failure to follow the Guidance deprives young people of the protection determined by Parliament, such as quality standards and inspection. The court cannot replicate the rigour of the regulatory regime that applies to registered placements. However, following the Guidance may risk a vulnerable child having nowhere to go.

MacDonald J reiterates the principles and the seminal importance of the inherent jurisdiction of the High Court as the ultimate safety net. The deployment of the inherent jurisdiction is only effective if it safeguards and promotes children's welfare. Where an unregistered placement makes clear that it will not or cannot comply with the Guidance, and in particular the requirement to issue an expeditious registration application, a number of factors militate against the deprivation of the child's liberty in such a placement being in the child's best interests.

In relation to placements that will not apply for registration, whilst it may be understandable if a provider does not ordinarily make such provision, such as a private landlord or holiday park owner, it is placements of this kind which are most likely to be wholly unsuitable. They expose the child to the double deficit in the form of a sub-optimal placement that is also outwith the statutory regulatory regime designed to safeguard him or her.

If there are no steps being taken to regularise the position by applying for registration contrary to the Practice Guidance, the placement cannot be brought within the regulatory regime that Parliament has determined is required to meet the child’s needs. The inherent jurisdiction should not be used in circumstances which lead to the perpetuation of such an outcome. Practically, the court may be required to make a very short order (measured in days and not weeks) to hold the ring whilst alternative arrangements are put in place, particularly where a placement is required immediately in order to meet the operational duties under Art 2 of Art 3 of the ECHR by keeping the child safe.

Decision
Non-compliance with the President’s Guidance is not determinative of the existence of the court's substantive jurisdiction. An unwillingness or inability to comply with the Guidance does not act per se to oust the inherent jurisdiction of the High Court to authorise the deprivation of a child's liberty in an unregistered placement.

The question for the court in such circumstances is whether that jurisdiction should be exercised where there has been non-compliance with the Practice Guidance and each case will turn on its own facts.

Unwillingness or inability to comply with the guidance will be a factor to consider in the best interest evaluation on any application under the inherent jurisdiction.

However, the court should not ordinarily countenance the exercise the inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Guidance to apply for registration (emphasis added).

Where a provider refuses to apply for registration, it is unlikely the court will conclude that the exercise of the inherent jurisdiction to authorise the deprivation of the liberty of a child with that provider is in the child's best interests.

As above, the authorisation given for a deprivation of liberty in that situation should be for the least time possible. The court should set a timetable for the identification of a placement that is registered (or willing to apply), registration of the placement being essential to ensuring that the child is kept safe in the medium and long term.

Note
Whilst each of the cases before the court concerns a child under the age of 16, the answer to the question posed in this case is applicable to all cases in which the Practice Guidance applies [para 3].